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Brawer v. Horowitz


decided: May 12, 1976.



Aldisert, Gibbons and Rosenn, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

The question for decision is whether the district court erred in dismissing a complaint that alleged a federal prosecutor and a cooperating witness had conspired to use perjured testimony and to conceal exculpatory evidence in order to convict appellants. The lower court held that both the prosecutor and the witness were immune from civil suit and, therefore, dismissed the complaint for failure to state a claim upon which relief could be granted. We held these appeals pending the Supreme Court's decision in Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128, 44 U.S.L.W. 4250 (1976). We now affirm.


Appellants Brawer and Ignomirello were tried and convicted in the Southern District of New York of transporting stolen United States Treasury Bills and of conspiring to do so. 18 U.S.C. §§ 2, 371, 2314; see United States v. Brawer, 482 F.2d 117 (2d Cir.), on remand, 367 F. Supp. 156 (S.D.N.Y. 1973), aff'd 496 F.2d 703 (2d Cir.), cert. denied, 419 U.S. 1051, 95 S. Ct. 628, 42 L. Ed. 2d 646 (1974). Prior to trial, appellee Mauceli pleaded guilty to a charge of conspiring to transport the stolen securities; he testified for the government; after trial, he was sentenced and ultimately placed on probation for two years. 482 F.2d at 121 n.5. Appellee Horowitz was the prosecuting Assistant U.S. Attorney.

In September 1974, after the Second Circuit affirmed their convictions, appellees filed a civil complaint in the District Court for the District of New Jersey. They alleged that Horowitz and Mauceli had conspired with "divers other persons unknown to plaintiffs" "to injure, oppress and procure the convictions of plaintiffs with the knowing use of false and perjured testimony, and to deprive plaintiffs . . . of their rights to a fair and untainted trial secured and guaranteed to them by the due process clause of the Fifth Amendment . . . as well as by the Civil Rights Act, 42 U.S.C.A. §§ 1985(2), 1986."*fn1 Appellants sought money damages from Mauceli only; they also asked that their convictions be set aside as having been unconstitutionally obtained.

Horowitz filed a timely motion to dismiss the complaint for want of personal and subject matter jurisdiction and for failure to state a claim. At the conclusion of an ex parte hearing,*fn2 the district court found that "at all times relevant to the allegations in the Complaint defendant Jay S. Horowitz was acting in his capacity as Assistant United States Attorney and was immune from suit." Civ. Action No. 74-1448 (D. N.J. Jan. 16, 1975). Accordingly, the court entered summary judgment in the prosecutor's favor. Upon motion and after concluding that appellants might not have had sufficient time in which to respond to Horowitz' motion to dismiss, see Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970) (per curiam), the court vacated its order. Ultimately, however, the court reaffirmed its initial ruling on Horowitz' immunity. Civ. Action No. 74-1448 (D. N.J. June 11, 1975).*fn3

Meanwhile, Mauceli had failed to answer the complaint timely and defaults were entered against him in December 1974. F.R. Civ. P. 55(a). Appellants then moved the district court to enter a default judgment as to Mauceli. F.R. Civ. P. 55(b). In February 1975, the United States responded on behalf of Mauceli with a motion to dismiss. Appellants moved to disqualify the United States; Mauceli countered with an affidavit, reciting in part that he had never received notice of the motion for a default judgment against him and that, in any event, he had been absent from the country for a short time "arranging my relocation under a new identity, with the assistance of the United States Government." In its June 1975 opinion, the district court held that the United States had legal authority to represent Mauceli,*fn4 28 U.S.C. § 517, and that Mauceli's alleged actions were cloaked with "absolute quasi-judicial immunity."

Thus, the district court dismissed the complaint as to both defendants with prejudice and without costs. These appeals, timely noticed, followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.


Imbler v. Pachtman, supra, held that a state prosecutor is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983*fn5 where the allegations of constitutional deprivation relate solely to his initiating a prosecution and presenting the case, i.e., to his role as an advocate. 44 U.S.L.W. at 4257. This case is slightly different. Horowitz was a federal prosecutor, so this case is a Bivens-type action,*fn6 rather than a § 1983 claim. Also, the relief sought against Horowitz was not money damages, but the setting aside of the convictions.*fn7 Notwithstanding these distinctions, in considering the immunity of Horowitz vel non we properly may look to § 1983 cases.*fn8 Paton v. La Prade, 524 F.2d 862, 872 (3d Cir. 1975). Accordingly, we focus on Imbler.

We have reviewed the policy considerations underlying the immunity accorded in Imbler, 44 U.S.L.W. at 4254-56. We believe that different rules should not obtain for federal prosecutors sued on a Bivens theory and for state prosecutors sued under § 1983. The policy considerations are exactly the same in each case. Accordingly, we hold that a federal prosecutor is absolutely immune from suit where the allegations relate solely to his initiating and presenting a criminal case. The allegations of the complaint implicating Horowitz all related to actions in his role as an advocate, rather than as an administrator or investigator. See Imbler, supra, 44 U.S.L.W. at 4257 & n.33. Thus, the district court did not err in holding Horowitz immune from this suit and dismissing the complaint as to him for failure to state a claim.


Before considering whether the district court properly dismissed the complaint as to Mauceli, we must determine whether the trial court erred in reaching the issue of Mauceli's immunity. The district court ruled that the United States had legal authority to represent Mauceli's interests. We agree.

Appellants' argument is multifaceted. First, they argue that the Department of Justice possesses no statutory or regulatory authority to represent a nongovernment defendant in a civil case. This contention approaches the frivolous. 28 U.S.C. § 517 provides:

The Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.

The statutory language does not limit representation to any class of cases; the only explicit limitation is that the interests of the United States be at stake. Judge Friendly summarized the law under the predecessor*fn9 statute to § 517:

Appellants claim in the first instance that the suggestion was unauthorized since the United States has no financial interest in the litigation. But the statute, 5 U.S.C. § 316, is not limited by its terms to cases of financial interest; it authorizes the Attorney General to send any officer of the Department of Justice "to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State * * *." Long before the present statute, which derives from the Act of June 22, 1870, c. 150, § 5, 16 Stat. 162, the Attorney General had submitted suggestions as to the immunity of the property of foreign sovereigns, The Schooner Exchange v. M'Faddon, 7 Cranch 116, 147, 11 U.S. 116, 147, 3 L. Ed. 287 (1812), as he has frequently done thereafter. Yet "the interests of the United States" in such cases are simply its interests in friendly intercourse with other nations and in avoiding reprisals by them . . . .*fn5

International Products Corp. v. Koons, 325 F.2d 403, 408 (2d Cir. 1963). See also Booth v. Fletcher, 69 App. D.C. 351, 101 F.2d 676, 681-82 (D.C. Cir. 1938), cert. denied, 307 U.S. 628, 83 L. Ed. 1511, 59 S. Ct. 835 (1939).

Next, appellants contend that 28 U.S.C. § 518(b), which authorizes the Attorney General to dispatch someone to "conduct and argue any case in a court of the United States in which the United States is interested",*fn10 requires as a prerequisite to government representation a specific authorization from the Attorney General. Because the government relied on a bald assertion that the Attorney General had determined that the interests of the United States were involved, the argument continues, the district court erred in denying appellants' motion to disqualify the government from representing Mauceli. We find absolutely no support in § 517 or § 518 for appellants' proposition. Moreover, 28 U.S.C. § 515*fn11 -- part of the same Chapter, and recodified at the same time as § 517 and § 518 -- does require an explicit direction by the Attorney General. Had Congress intended to require a specific authorization from the Attorney General before the government entered a case to protect the interests of the United States, it would have been a simple task to incorporate language similar to that which appears in § 515 into § 517 or § 518.

Thus, the proper focus on this appeal must be on whether the "interests of the United States" were at stake in the damage action against Mauceli.*fn12 The government should not "interfere in any mere matter of private controversy". In re Debs, 158 U.S. 564, 586, 39 L. Ed. 1092, 15 S. Ct. 900 (1895). On the other hand, it plays a legitimate role where the matters involved "affect the public at large" and "are entrusted to the care of the nation". Ibid.

Clearly, the government has an interest in the effective enforcement of its criminal laws. See Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). In many instances of sophisticated criminal activity, effective prosecution is impossible absent the cooperation of an "insider". Frequently, too, the only carrot the government can offer such an informer is the promise of a new identity.

Here, Mauceli cooperated with the government in obtaining the convictions of appellants for trafficking in stolen Treasury bills. In return, the government relocated him and gave him a new identity. See page 833 supra. The government responded to the motion to disqualify it by asserting:

The "interest of the United States" involved here is the assistance and protection of government informers and witnesses, so valuable in the prosecution of criminal actions. Public policy demands that government informers and witnesses should feel free to give complete and independent testimony in criminal prosecutions, unintimidated by the threat of harassing, vexatious and frivolous civil suits against them due to their testimony.

Moreover, Mauceli opined in his affidavit that the damage action was instituted "for the illicit, illegal purpose of obtaining my new identity in order to seek revenge upon me by the use of physical violence."

In these circumstances, we agree that the interests of the United States were involved. A contrary holding would deny the reality of the "justice system" that exists among some criminals and would tend to subvert an important aspect of the government's work for the "public interest in effective law enforcement." Roviaro v. United States, supra, 353 U.S. at 59.


We may now consider Mauceli's amenability to appellants' claims.


Assuming arguendo that a Bivens action would lie against a witness at a federal trial,*fn13 we may proceed along a path analogous to that travelled by the Supreme Court in Imbler. Specifically, we inquire into the immunity historically accorded witnesses at common law and the interests behind it, Imbler v. Pachtman, supra, 44 U.S.L.W. at 4254; then we must determine whether the considerations of public policy underlying the common-law rule likewise countenance immunity from a Bivens claim, ibid. at 4255.

Common-law witness immunity extends back to Lord Mansfield's comprehensive 1772 formula: "Neither party, witness, counsel, jury, nor judge can be put to answer, civilly or criminally for words spoken in office." See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 COLUM. L. REV. 463, 474 (1909). While on the New York Court of Appeals, Cardozo embraced Lord Mansfield's formulation; Augustus Hand described it as "practically the universal rule in this country." See Sacks v. Stecker, 60 F.2d 73, 75 (2d Cir. 1932). See generally 1 F. HARPER & F. JAMES, THE LAW OF TORTS § 5.22, at 423-26 (1956) [hereinafter cited as Harper & James]. Witness immunity is firmly bottomed in public policy:

The function of witnesses is fundamental to the administration of justice. The court's judgment is based on their testimony and they are given every encouragement to make a full disclosure of all pertinent information within their knowledge. They are, of course, subject to the control of the trial judge and are subject to contempt citation for misbehavior in the exercise of the privilege and to prosecution for perjury if convicted of knowingly giving false testimony.

Ibid. at 424. See also Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 COLUM. L. REV. at 476: "Every consideration of public policy requires that they should be as fearless in testifying as the judge and jury are independent in weighing their testimony."

The policy arguments supporting common-law witness immunity obtain equally to immunize a single witness from a Bivens -type action. Indeed, where as here the gist of the complaint is that perjured testimony deprived appellants of their constitutional right to a fair trial, the claim boils down to one of "constitutional defamation".

Immunity from a civil damage suit, however, does not mean that a cooperating witness in a criminal trial can speak with complete impunity of his former cohorts. The trial judge may exclude inflammatory testimony. See Harper & James at 426. On cross-examination, counsel may seek to undermine the witness' credibility. Even if it develops only later that the witness committed perjury, and notwithstanding Lord Mansfield's statement to the contrary, the witness may be indicted and convicted of perjury. See Imbler v. Pachtman, supra, 44 U.S.L.W. at 4259 (White, J., concurring in judgment).


Next, we address the complaint's allegation that the prosecutor and the witness had conspired to use perjured testimony and to conceal exculpatory evidence in order to deprive appellants of a fair trial. These allegations, appellants contended, sufficed to state a claim under 42 U.S.C. § 1985(2).*fn14

We approach the perfidious syntax of § 1985(2) with some reserve for, as the First Circuit recently observed, there is a dearth of authority to light our way. Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S. Ct. 1495, 47 L. Ed. 2d 754, 44 U.S.L.W. 3545 (1976).

Section 1985(2) derives from § 2 of the Ku Klux Act. Act of April 20, 1871, ch. 22, § 2, 17 Stat. 13.*fn15 Its current language is taken verbatim from Revised Statutes § 1980, Second. Comparison of the 1871 Act and the 1875 "revision" under Secretary of State Hamilton Fish reveals no substantive change in the statutory schema.*fn16 The formulation of R.S. § 1980 merely reorganized*fn17 the Act into its current three subsections and made minor grammatical changes.

Section 1985(2) clearly reaches private action. See Griffin v. Breckenridge, 403 U.S. 88, 96-101, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). In this respect, it differs markedly from 42 U.S.C. § 1983, which derives from § 1 of the Ku Klux Act. Another important difference between the two sections is that § 1985 proscribes conspiracies, while § 1983 provides a civil remedy for specific acts of constitutional deprivation. See 1 STATUTORY HISTORY OF THE UNITED STATES: CIVIL RIGHTS 626 (B. Schwartz ed. 1970) [hereinafter cited as Schwartz]. "That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others." Griffin v. Breckenridge, supra, 403 U.S. at 101 (discussing § 1985(3)). To avoid the "constitutional shoals" attendant an impermissibly overbroad statutory interpretation, see ibid. at 102, therefore, we must look to the specific conspiracies proscribed by Congress.

The debates on the Ku Klux Act as they relate to what is now § 1985(2) bespeak a Congressional intent to insulate witnesses, parties and grand or petit jurors from conspiracies to pressure or intimidate them in the performance of their duties, and an intent to guard against conspiracies the object of which is to deny citizens the equal protection of the laws. See Schwartz 621-24, 641-43. See also C. ANTIEAU, FEDERAL CIVIL RIGHTS ACTS: CIVIL PRACTICE § 95 (1971). Senator George Edmunds of Vermont, who reported the bill out of committee, elaborated on this second objective in the following exchange:

OLIVER MORTON [R. IND.]. I ask the Senator whether, in the seventh and eighth lines of that section where the words "or obstruct the equal and impartial course of justice" are used, that clause is intended to embrace the State courts.

MR. EDMUNDS. Certainly, referring to "the equal and impartial course of justice" mentioned in the second sentence on the third page. This obstruction of the equal and impartial course of justice, however, must, under the provisions of all this bill, go so far as to deny and withhold from citizens of the United States that equality of protection in seeking justice which the Constitution of the United States gives to them. We do not undertake in this bill to interfere with what might be called a private conspiracy growing out of a neighborhood feud of one man or set of men against another to prevent one getting an indictment in the State courts against men for burning down his barn; but, if in a case like this, it should appear that this conspiracy was formed against this man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter, (which is a pretty painful instance that I have in my mind in the State of Florida within a few days where a man lost his life for that reason,) then this section could reach it.

Schwartz 623 (emphasis added).*fn18

After considering the statutory language and the apparent Congressional intent evidenced in the legislative history, we conclude with the First Circuit that § 1985(2) itself subdivides into two parts -- that which precedes and that which follows the semicolon. See n.1 supra; Hahn v. Sargent, supra, 523 F.2d at 469.

The latter half of the subsection guards against those obstructions of justice "in any State or Territory" which have as their objects the denial of the equal protection of the laws. The complaint in the instant case*fn19 does not allege a "class-based, invidiously discriminatory animus". Ibid. See also Griffin v. Breckenridge, supra, 403 U.S. at 96-103. Accordingly, the complaint failed to state a claim under the second half of § 1985(2). Were this a case alleging a conspiracy to testify falsely, or to suppress exculpatory information, in order to effect a class-based, invidious discrimination, it would present wholly different issues and might state a claim for relief.

The first half of § 1985(2) aims at conspiracies the object of which is intimidation of or retaliation against parties or witnesses, or grand or petit jurors, in any court of the United States. The federal nexus, then, is not the class-based, invidiously discriminatory animus required by the second half of the subsection, but the connection of the proscribed activities to a federal court. Viewing the statute in this light and assuming appellants would seek to invoke this part, but see n.19 supra, the thrust of their argument must be that Horowitz and Mauceli "conspire[d] to . . . influence the verdict . . . or indictment of [the] grand or petit juror[s]" by agreeing to use perjured testimony and to conceal exculpatory evidence. After careful consideration we have concluded that such a construction would be impermissibly generous. We understand the first part of § 1985(2) to concern itself with conspiratorial conduct that directly affects or seeks to affect parties, witnesses or grand or petit jurors. The allegations of this complaint are different in kind. At best, the allegation is that the conspiracy "influenced" the jurors by precluding them from considering fully accurate evidence. We deem this "influence" to be too remote to fit within the intended ambit of § 1985(2).

The very language of the Ku Klux Act, see n.15 supra, buttresses us in our conclusion, for the statute specified that conspiracies to influence juries be "by force, intimidation, or threat". This approach was wholly consistent with each of the preceding clauses of § 2 of the 1871 Act. Although with respect to conspiracies to influence jurors the current § 1985(2) does not include these five words, we attach no talismanic significance to this difference. Rather, we believe it wholly logical and reasonable that, in compiling the Revised Statutes, Secretary Fish's commission deleted the words, recognizing that juries can be "influenced" as often and perhaps more effectively by positive inducements -- such as money -- as they can be negative inducements, including force, intimidation or threats. In our view, the deletion was not substantive, see n.16 supra, but sought to clarify the Congressional intent to reach all conspiracies to influence jurors directly.

Thus, we conclude that appellants failed to state a claim under § 1985(2).


Having failed to state a claim under § 1985(2), a fortiori appellants failed to state a claim under § 1986. Hahn v. Sargent, supra, 523 F.2d at 469-70; Hamilton v. Chaffin, 506 F.2d 904, 914 (5th Cir. 1975).


To summarize, we conclude that Horowitz was absolutely immune from appellants' allegations; that the public interest in full disclosure at trial of all relevant information tips the balance in favor of preserving to a single witness immunity from a Bivens action for damages; and that in these circumstances appellants failed to state a claim against Mauceli under either § 1985(2) or § 1986.*fn20

The judgment of the district court will be affirmed.*fn21


The judgment of the district court will be affirmed.

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